"The history of liberty," William O. Douglas said, "is the history of due process." For lack of due process, Kelly Michaels is no longer at liberty. Four years ago, she was sentenced to 47 years in prison, and she will not be considered for parole until 2002. Her appeal has been moving glacially through the New Jersey courts, which have, however, bestirred themselves to rule that she is so dangerous she cannot be allowed bail.
Kelly Michaels's education in our system of due process began when she was charged with 235 counts of sexual abuse of 21 children -- ages 3 to 5 -- during the seven months she taught at the Wee Care Day Nursery in Maplewood, N.J. She was convicted of 115 "despicable acts of a sexual nature."
The charges included: penetrating the orifices of the children with forks, spoons and toys, making the children have oral sex with her, and other loathsome acts. There was also the "pile- up" game in which the children, naked, scrambled on top of each other -- with the teacher at the very top, "squishing" the children.
At the trial, one boy noted that while he was on an airplane to visit his grandmother, Kelly Michaels -- her infernal powers being boundless -- turned him into a mouse.
All this horrifying depravity, except for the transformation of the child into a mouse, was said to have taken place during a daily 45-minute nap time period during which Michaelsand the children tiptoed out of where they should have been into a second floor choir room (the school rented space from St. George's Episcopal Church). To reach that room, the troop would have had to pass various offices and the teachers' lounge. And once in the room, the sounds of the children, particularly during the boisterous pile-up game, should have attracted the attention of at least some of the eight teachers, two administrators and seven church personnel, as well as some of the parents and parishioners who regularly went through the premises.
Yet no one saw, heard or smelled anything untoward. Indeed, church workers often entered the choir room unannounced during school hours, and church secretaries testified that the bathroom they used could be reached only through the choir room.
How, then, was Kelly Michaels accused and convicted of such monstrous crimes? After she had left the Wee Care Day Nursery for another job, one of the Wee Care children, on having a thermometer placed in his rectum by his pediatrician, said, "That's what my teacher does tome at nap time at school."
The rumors and speculations started, parents became frightened, and social workers and other investigators from official agencies began to question the children. These interrogations went on for a two-year period. The questioning was intense. Morton Stavis, Michaels's pro bono appellate attorney -- who has long specialized in "hopeless" cases -- says: "Investigators told the children that others in the school had accused Kelly Michaels and that they should join them. ... Children not describing abuse, or not agreeing with the accounts provided them by the questioner, were chided as being immature and were warned that they were betraying their friends and family."
Court documents show this characteristic exchange, for instance, between Lou Fonolleras -- a social worker with the New Jersey Division of Youth and Family Services -- and a boy:
Fonolleras: "Do you want to help us keep her in jail. ... Let's get done with this quick so we could go to Kings and get your Popsicles. Real quick, what happened with the wooden spoon?"
The boy: "I forgot. ... I hate you."
The child, after further aggressive prodding, finally yelled that Kelly Michaels had stuck a fork in his "hiney," as his social worker called it. But soon after, the boy shouted, "It's all lies!"
At the trial, assistant prosecutor Sara McArdle asked the boy if what he had really meant to say was that he was hoping it was all lies.
The child, resigned to the bewildering ways of adults, said that yes, that's what he had meant to say.
Thirteen psychological experts testified for the prosecution, but the defense was prevented from having its experts examine any of the child witnesses, who testified on closed-circuit television. One of those denied access to the children was Dr. Elissa Benedek, who later became president of the American Psychiatric Association. It was important, she said, to find out if "the children's allegations have been coached, rehearsed or are spontaneous."
In Whitney v. California (1927), Justice Louis Brandeis wrote of a time when "men feared witches and burnt women." That time is not over.